Brief for the Petitioner — Redrup v. New York

‘SUBJECT INDEX

. Page .

SD SION in cxreicsstesnspsssletnaternttininechaibaieineiiatetianasaiaiian 1

Jurisdiction ...........-.---- kcal = a 2

Question. presented .............. cihanieadiapieengigaieiihamianenmainn 2

- Constitutional and statutory provisions involved ...... 2

SIE Ee CI eiticicccttrpetnionnnt

SUMMALry Of AFYUMEN .........--cecceceieccecerereceneerereeqeeneeene | 6

Argument sii SEIN ey Ree RIF ret nT 9

_ The state statute, as construed and applied to au-

thorize the conviction of the petitidner herein

without proof that the petitioner had knowledge

of the contents or the alleged obscenity of the

books involved, deprives petitioner of his liberty

without due process of law, and abridges the

exercise of freedoms of speech and press, con-’

trary to the due process and free speech and

press provisions of the First and Fourteenth

Amendments. . ieidisuienlapminiabedl

EES Ieee ER I TE SO ST

Appendix A. Constitutional provisions and statutes

I sankaecneeienieaninitnthtenneigiciapnqnciajaigilaniteminssiiitsiiia App. p.

3 ~ Manual Enterprises, Inc. v. Day; 370 U.S. 478 ....15, 19

TABLE OF AUTHORITIES CITED

e Cases ' Page )

Baumgartner v. United States, 322 i 2 fa 18

Blackburn v. Alabama, 361 TN TN cihcitsesincien 12 !

Edwards v. South Carolina, 372.U.S, 229 ............12, 19 |

Fiske v. Kansas, 274 U.S. 380 ............cccescscesseees ee |

_ Garner v. Louisiana, FOO WS. TSF concecconcsees euscvennenaenes 14

Gonzales v. Landon, 350 U.S.920 -....csissecsess- essessneeeo 19

Hartzel v. United States, 322 U.S. 680 -ce.csecccecsossso0 16 |

Jacobellis v. Ohio, 378 U.S. 184 ceecccscccccsccscsscecssssseee 9 13 |

Keegan v. United States, 325 U.S. 478 co.cc. 17 -

Larkin v. G. I. Distributors, .14 N.Y. ‘24 399, 252

N.Y.S. 2d 71; 200 N.E. 2d 760 ceesssssscsssssssseccccceceee 20

Napue v. Illinois, 360 U.S. 264 .......-c.eciecsesssseeseeeeseeens 12

New York Times Co., et al. v. Sullivan, 376, U.S.

254 ... ‘ti vgld 15

Niemotko v. Mariail 340 U. 1S, 268° sian Niasieaouctlin 12

_ Noto v. United States, 367 U.S. 290 oeccececccsees no |

People v. Richmond County News, 9 N.Y. 2d.578, | |

- 216 N.Y.S. 2d 369, 175 N.E. 2d 681... eecscsecceeecen » !

Roth-v. United States, 354,U.S. 476 ......ce-css0e0- ae 10

Schneiderman v. United States, 320 U.S. 118 .......... 19

Schware v. Board of Bar Examiners, 353 U.S. 232 7 14

- Shuttlesworth v. City of Birmingham, 382 YS. 87 .. 14

Smith v. California, 361 U.S. 147 ....6, 10, 16, 21, 22 —

Taylor v. Louisiana, 370 U.S. 154 eevee toecomee, 14

_ Thompson v. City of Louisville, 362 U.S 199 13, 14

1

United Mine Workers of America v. Gibbs, 383 U.S.

© “FED pantsbeicansanimnctgusiien stincinoonenedaieceeneieneneneneveenergavesecseuen 19

Wood v. Georgia, 370 8 SR eee 19

| | Statutes - . °

New York Penal Law, Sec. 1141(1) ........ oan CI

_ United States Code, Title 28, Sec. 1257(3) ...!.-eew-- 2

United States Constitution, First Amendment ..........

PORE con KOE are idan: Tk a ba tm Se

United States Constitution, Fourteenth Amendment

= aiasiidiabacpnaiiaiinaiic ssenioiiicleel scaiedieicliatiadielnatie 2, 6 9, 32, 15, 41,

. Textbook

4 Wigmore, Evidence (3rd Ed.'1940), Sec. 1056 ...... 21

G

q.

. ° /

. 4

Me.

?

%

: »

;

. ; ¥

> ‘

“8

P ,

|

I. . |

& aot

f= -— ;

*. * |

a

-

oe eee Cy

- a> - ’ 2 i

a i ee ee ore, t-

amines 2 oe cae onte ~ ~

Appeals: “of New

: opinion.

IN THE

Supreme Court of the United States

October Term, 1966

No. 3

Rosert Reprurp, ~

J Petitioner,

US. ,

THE PEOPLE OF THE STATE or NEw York,

Respondent.

On Writ of Certiorari to the Appellate Term of the Su-

preme Court of New York, First Judicial Department.

BRIEF FOR THE PETSPIONER. |

Opinions Below.

The action was tried in the Criminal Court Pe the

City of New York, County of New York. No opinion

was rendered by the three-judge court’ before whom

the action was tried, except the statements at the con-”.

‘ clusion of the trial finding peti ‘oner guilty as charged

(R. 23, 25-26), and suspending sentence (R. 24).

<The judgment of conviction was affirmed by the

Appellate Term of the Supreme Court of New York

icial Department (R. 27-28) without

—

Jurisdiction.

The judgment of the Appellate Term of the Supreme

Court of New York for the First Judicial Department

was entered ori December 17, 1964 (R. 27-28). A timely --

application for leave to. appeal to the Court of Appeals

was denied on January 4, 1965 (R. 28). On March, 25,

1965, by order of Mr. Justice Harlan, the time within

which to file a petition for a writ of certiorari was ex-

tended to April 19,1965 (R. 29). The petition. was

filed Aprif® 16, 1965, : and was granted on April 25,

1966, limited to Question 4 presented by the petition

(R. 30), as set forth hereinafter.’ The jurisdiction of

this Court is invoked under 28 U.S.C. 1257(3).

Question Presented.

Whether, consistent with the due process requirements

of the Fourteenth Amendment and the constitutional

- standards for judging obscenity enunciated by the Su-

preme Court, a judgment of conviction can be rendered

against an accused without proof in the record that the

accused knew the contents of the material or believed

that the material involved violated the law, and where

books of a similar character have been held to be con-

stitutionally protected by the courts of the State.

Constitutional and Statutory Provisions Involved.

The pertinent provisions of the First and Fourteenth

Amendments to the Constitution of the United States,

and New York Penal Law, Section 1141, subdivision

(1), are printed as Appendix A hereto.

Mr. Justice Black, Mr. Justice Douglas and Mr. Justice ,

Stewart were of-the opinion that certiorari should be granted

on ton the nee — by the petition (R. 30).

* : 4

ee ee ee ee ee I re STON eee FTI TIES ING Ae?

ee

“v is tadteensies me ninlinhatnhaine iat nal aaheeinatemants oxtanen ee

—

Statement of the Case.

* On April 11, 1964, a complaint was filed by a police

officer, one Robert Griefenstein, averring that on the

previous day the said officer had approached a news-

stand at 263 West 42nd Street, located at the street

level of a subway arcade in the County of New York,

‘and spoken to an attendant at the stand and purchased -

two paperback books. These two books were entitled .

Lust Pool and Shame Agent. The police officer alleged

that he paid the sum of $1.65 for the said two books

and that the petitioner accepted the money. The officer

also averred that the books he purchased were. of a

_ “lewd lascivious indecent nature”, and that following

tlre purchase the police officer announced his authority /

to the petitioner and seized six additional copies. of

Lust Pool (R. 2-3).

- On April 29, 1964, a twp-count I formation (R. 6)

‘was filed in the Criminal rt of the City of New

York, County of New York, charging petitioner with

violations of New York Penal Law, Section 1141, sub-

- divisign (1). Each count of the Information alleged that

petitioner had sold an obscene book in violation of the

statute. The cause came on for trial before a three-

judge court in the Criminal*Court of the City’ of New

York, County of New York, om June 4, 1964 (R. 9).

The sole witness for the prosecution was police of- -

ficer Griefenstein. (R. 10). The officer testified that

as he approached the newsst: saw displayed in a

book rack the two books: befein in . He pointed

to the boek rack in the presence of the clerk, petitioner

herein, and said “Lust Pool and Shame Agent” (R.

10). The petitioner removed the two books from the

"book rack and placed them on the counter. The cost of . |

~~

both books was $1.65. The police officer gave the pefi-

tioner two one dollar bills and the petitioner gave him

$.35 change. Then petitioner placed the two books in a

brown paper bag and handed it ‘to. the police nme

[People’s Exs. 1, 2,.3; R. a), . aa

After having made the pare

" stein identified himself as

ng and the officer told peti-

rch warrant for the premises

(R. 11- 12), The /officer. asked petitioner whom he

worked for-(R,/12). Petitioner replied that he had been

in the employ of a Mr. Block for some two years; that

he alternated between the newsstand and the book store

which was down the stairs in the subway itself. The

. petitioner earned $75.00 per week (R. 12). The officer

asked petitioner : “Why do you sell this garbage?” Peti-

tioner replied: “There is worse stuff than that around” :

stating, “I think these books here are worse”, referring,

stated Officer Griefenstein, to “girlie magazines that

‘were on top of the counter with the nudes and semi-

nudes in color and black-and-white” (R. 12).?

“The aforesaid was the People’ s case (R. 13).

, Patrolman Griefen-

“police officer. Petitioner

Petitioner moved to dismiss each count of the In- *

formation upon the grounds, among others; “that the

‘ People have failed to prove scienter, any knowledge of

the contents. of the book, either book, or that defendant

2On cross-examination, the dine admitted that he made no

note of the conversation nor did he refer to it in the complaint

(R. 2-3) which was filed, although it was his custom to make

-notes of conversations with persons whom he arrested (R. 12-13).

*- {

Ww

As

o..

Wy

—5— .

had any reason. to believe that the books came within

& prohibition of the law” (R. 13):

». Petitioner testified ‘that ‘his oriacigal duty was work-

ing’ ‘ithe book store in the arcade of the subway where

paperbacks covering a wide variety of literary, scientific

and popular subjects were sold (R. 14-15). Another

_ man was ordinarily assigned to the newsstand, but the

_ man had been ill and petitioner had filled in for him

for an hour until the arrival of another employee (R-

15). Petitioner ‘told the officer that he was up at the

newsstand for only an hour because of the illness of

the other employee for whom he was filling i in (R. 16).

Petitioner had never seen the two books here ‘in-

volved before the officer asked for them (R. 16). He

had never been arrested nor conyicted of any offense -

prior thereto (R. 16), nor did-he recall any conversation

as related by the police officer (R. 16). :

After petitioner rested, petitioner renewed the mo-

‘tions made to dismiss and moved for judgment of

. acquittal on the ground that the People had failed to’

prove petitioner’s guilt beyond a reasonable doubt (R.

22).. The Court, reserved decision. On June 11, 1964, |

the Court announced it had reached a‘decision: “The

_ court has read the two books involved in this case and

the motion to dismiss is denied as to each count of the

information and the defen@ant is found guilty as

charged of Both\ counts of the information.” (R. 23). |

On July 28, 1964, petitioner received a suspended sen-

tence (R. 24).

..

“On December 17, "1964, the Appellate Term of the

* Supreme Court ‘of New York for the First Judicial De-

- partment affirmed the judgment of conviction, without

opinion, (R. 27-28). Application for leave to appeal to

the Court of Appeals of the State of New York was.

_ denied, without opinion, on January 4, 1965 (R. 28).

Np Summary of Argument.

- The iad herein has been so construed and ane

as to authorize the. ‘conviction of the petitioner without

proof that petitioner had" knowledge of the contents or

the alleged obscenity of the books involved.

In Smith v. California, 361 U.S. 147,.the state éedi-

nance. imposing absolute criminal responsibility on those

“engaged in the publication and. dissemination of books

and othcr forms of the printed word was held invalid ~

under the free speech and press provisions of the First

and Fourteenth Amendments. It was held that scienter

_) and mens rea are constitutionally required ingredients |

of the ‘offense of obscenity ; that the elimination of a |

- scienter requirement substantially restricts freedoms of

speech and press, and impels. a self-censorship which

ultimately deprives : the community of access to constitu-

tionally protected material. An obscenity statute which,

on its face and as construed and applied, eliminates

-~ scienter, is unconstitutionally vague, both as a matter

of procedural due process and substantive due process.

The punishment of innocent and guiltless behavior, it

_-was held in Smith, would run counter to the protections

afforded by the Constitution.

wtet. oe

7 aoe

In ordinary, eriminal ‘ casés, the burden is always. on:

the prosecution to plead a prové every essential in-

s gredient of the .offense. Since obscenity prosecutions ie

‘implicate questions of speech and press, due * process

clearly requires that the State bear the burden of per-

suasion to show that an accused knew that the material 7

‘, involved was obscene and, with such guilty knowledge, :

disseminated the ‘material with the intent of appealing

_ to prurient interest.

The case herein involves the question of the constitu

doud sufficiency of proef necessary to establish guilty

knowledge and unlawful intent. This Court has con-

stantly held that: its review is not limited to the elabora-

tion of cofstitutional principles; ; that in proper cases

the Court must review the evidence to make certain that ~° ~~:

_ those principles have been constitutionally applied. The ~

performance of this duty is especially required when the

question is. one of where the lire should be drawn be-

- tween constitutionally protected — — alleged

criminal speech, ~*~

The standards for assessing adequacy of scoot nected

~ to maké out a case of criminal speech are necessarily

strict if the guarantees of the provisions of the Bill of

Rights are .to be preserved. In the context. of a penal

statute which ‘purports to punish the dissemination of

obscene writings, the Constitution requires that the es-

sential elements of obscenity, and the unlawful knowl- |

- edge and purpose of the accused, be established beyond

a reasonable doubt. If freedom of expression. is to. be -

¢

7 ° " ,, . m be

: , : ¥ a"

. ae : " ; ¢ k ;

safeguarded, proof of guilty knowledge and unlawful j in- _

_ tent in any obscenity prosecution. must~ be clear, con-

- _vincing, ufequivocal and beyond doubt..

‘Measured by the’ requisite constitutional denned, .

the ‘evidence in the record herein is clearly inadequate

to sustain the judgment of conviction. The proof is in-

_ sufficient to show either knowledge of ‘the contents ‘of

stantial and lacking in any probative value to support

‘the judgment of ‘conviction. The State manifestly failed

to meet the constitutional burden of proof. The broad _

. protections of freedoms ‘of speech and press would be

: seriously endangered if a judgment of conviction in an |

obscenity prosecution were to be ‘sustained on the basis -

of the meager and flimsy ‘evidence presented in the

record herein. 7h

- the writings by, the petitioner or any reason for the peti--

tioner to.believe that the material was obscene ot other-.

~ e wise unlawful. The evidence in the record is too insub-.

summarize the conclysions which were reached .i in Point I of the -

ARGUMENT.

‘ |

The State Statute, as Construed and ‘Applied to his. )

’ thorize the Conviction of the Petitioner Herein

Without Proof That the Petitioner Had Knowl- —

edge of the Contents or the Alleged Obscenity

_of.the Béoks' Involved, Deprives Petitioner of

His Liberty Without Due Process of Law, and

Abridges the Exercise of Freedoms of Speech |

and Press, Contrary to the Due Process and

-Free Speech and Press Provisions of the First

and Fourteenth Amendments.

- (a) The case herein involves important smiitteilias!

- issues with respect to the quality of proof necessary to

_ show scienter and mens rea in obscenity. prosecutions.

The fundamental question presented is whether the evi-

dence in this record can constitutionally sustain the —

Judgment of conviction rendered against petitioner under

~ the principles enunciated by this Court and the demands

of the Constitution.

The constitutional issues. ues here involved s should, it is

‘ submitted, be considered i in in the context of the basic con-

stitutional postulates which should govern determina- . .

tion of issues of scienter and mens rea. in an mney

prosecution.* : ;

' 8The constitutional standards and criteria for judging issues of

guilty. knowledge and unlawful purpose in obscenity prosecutions

were discussed in detail in Point I of the Brief for the Petitioner

in the companion. case of Austin_v.Kentucky, October Term, :—

- 1966, No. 16, in which chief counsel for petitioner therein is the

‘ ‘same as chief counsel for petitioner herein. Counsel ‘does not

therefore: repeat, but incorporates by reference, the detailed .

analysis made in the Austin brief with respect to the general

rinciples which should govern issues of scienter and mens rea‘

in obscenity prosecutions. It may be helpful, however, to briefly

Austin brief.

’

—0- -

Every obscenity prosecution involving as it does

“teshe writings and other media of communication, im-

_ plicates questions of protection for freedoms of speech .

_and press. Material which is not obscene is ordinarily |

‘entitled to the protection of the provisions ofthe First —

_ Amendment. It is important, it is submitted, to. recall

“Ithat freedoms of speech and press have been held by

this Court to contain values which are essential in a

democratic society ; and it is, therefore, of the utmost

‘significance’ that standards for judging obscenity and

’ scienter be narrowly confined i in order to safeguard free-

- . dom-of expression. -

—

,* Pm ——

It was nat until-the decision in Roth v. United States,

354 U.S. 476, that this Court undertook to define “ob-

-'scenity” in the light of the demands of the First’ Amend- ’

_ ment. Rejecting the Hicklin standard as unconstitution- “

ally restrictive of freedoms of speech and press, this

Court has held that the essential elements required to be

established in any obscenity prosectition include: (1) the

material must go substantially beyond customary limjts

~ Of ‘candor, in the Natior.as a whole, in the description

or representation of matters pertaining to sex, nudity or

% excretion; (2) the dominant theme of.the material, taken

ay as a whole, must appeal to prurient interest; (3) the

material must be utterly without social importance ;'and

(4) the constitutional status of the materfal cannot be —

a weighing of the social importance of

- the material against its. alleged prurient appeal.

In Smith v. California, 361 U.S. 147, the Court

struck down a California ordinance which imposed ‘strict

or absolute criminal responsibility on those engaged in

the publication and dissemination of books and other -

forms of the printed word. The reasons advanced by the

1 Aly te

Court for holding that the siisiningine of scienter in ob-

" scenity prosecutions was constitutionally impermissible

were as follows: that élimination of the scienter require-

ment would substantially restrict freedoms of speech

and press; that such a procedural device would cause a

self-censorship ‘detrimental to ‘the community and its ace

cess to constitutionally protected material; that a.statute 7

which eliminated scienter, would be unconstitutionally .

vague, beth as.a-matter of procedural-due process and °°

substantive due process; and that the punishment of in- ~

‘nocent and guiltless behavior would clearly run counter

to the protections afforded by ‘the Constitution. .

Since scienter and mens. rea are therefore constitu-

: ; tionally required ingredients of the offense of obscenity, |

it would follow under. the decisions of this Court that

the burden is on the prosecution to plead and prove

scienter. and mens rea. It is of course settled that in

criminal cases the burden is always on the prosecution .

to plead and prove every. essential ingredient of the of-.

fense. Moreover, since obscenity prosecutions involve

questions of speech and- press, due. process: would. cer-

tainly require that: the State bear: the burden’ of per-

suasion to show that an accused d engaged in. criminal

The case herein should be soliaidered, it is stantaioit

in, the context.of the aforesaid constitutiogal principles.

These proceedings. present a separate issue in the area of |

_—

~scienter and mens rea, to-wit, the constitutional -suf-

_ ficiency of. the proof necessary to establish guilty’

knowledge | and unlawful intent. The "questions: pre- -

sented are, first, what:are the standards for assessing

. the adequacy of proof: needed to.make out a -case of”.

scienter and mens rea in atta ae ees. and,

ty

2e

cee Viee

second, vituither those standards have been met in the’

_ record presented:in the case herein.

‘ (b) Since a judgment involving freedoms of speech a

and press affects the exercise of freedoms deemed €s-

; sential to the vitality of democratic institutions and a.

~’. self-governing society, this Court: has ‘constantly held ©,

that the record upon which such a. judgment is hased

P will always. be~ feviewed with’ the scrupulous * care de- 8

. imanded by our Constitution. °

Hence, in Niemotko v. Maryland, 340 U.S. 268, 27 1;

the Court stated: .““In ‘cases in which there is a dein

of denial of riglits under the Federal Constitution, this -

Court is not bound by the conclusions of. lower courts,

_ but will re-examine the evidentiary basis on which those.

conclusions are founded.” In Napue v. Illinois, 360 U.S.

264, 271, it was held: “The duty of this Court to make

its own independent ‘examination of the record when

federal constitutional deprivations are alleged is clear,

resting, ‘as it dogs, on our solemn responsibility for

maintaining the Constitution inviolate.”

In Blackburn v. Alabama, 361 USS. 199, a ‘bisa in-

ing alleged violations of the Due Process Clause of

ya Fourteerith Amendment, this Court. held: “It is well |

established, of course, that although this Court will ac-

_cord respect to the conclusions of the state courts in

_cases of this nature, we cannot escape the -responsibility

of scrutinizing the record ourselves” (361 U.S. at 205,

-fn.-5). In Edwards v. South Carolina, 372 U.S. 229, a

_case involving rights of free speech; free assembly and -

' freedom to petition for redress of grievances, this Court

noted that it “remains our duty in.a case such as this

to, make ari independent examination of. the. whole

record” (372 U.S. at oe

~~

~

ee ee a ee a

—13—

te New York Times Co., et wm v. 1; Sulliooin, 376 U.S.

_ 254, this Court elaborated the constitutional principle

with respect to review of judgments involving First

“Amendment rights. :

“Since respondent may seek a new trial, we deem’

-that-considerations of effective judicial administra-

tion require us to review the evidence in the. ‘present

~ record to determine whether it could constitutional-

ly support a judgment for respondent. This Court’s

dity is ‘not limited to the elaboration of constitu-

tional principles ; we must also in proper cases re-

view the evidence to. make certain that those prin-

ciples have been constitutionally applied. This is _

‘such: a case, particularly since the question is one

of ‘alleged trespass across ‘the line between speech

unconditionally guaranteed and speech which may .

legitimately be regulated.’ Speiser. v. Randall, 357

U.S. 513, 525, 78 S.Ct. 1332, 1342; 2 L.Ed.2d 8

1460. In cases where that line must be drawn, the —

rule ig that we ‘examine for ourselves the state-

ments in issue and the circumstances under which

they were made to see * * * whether they are of .

a character which the principles of the First

‘Amendment, as adopted by the Due Process Clause

of the Fourteenth Amendment, . Protect.’ .3 2” (376

U.S. at 284-285). 7

See also; Jacobellis v. Ohio, 378 U.S. 184, 1898.

4“And. this Court will review the finding of facts by a State

court where a Federal right has been denied. as the result of a

finding shown by the record to be without evidence to support it;

or where a conclusiqn of law as to a Federal right. and a finding

of fact are so intermingled as to make. it necessary, in order to

pass upon the Federal 380, 385° See to analyze the facts. . . .” Fiske

v. Roncas, 274 US. See also, Thompson v. “City of.

— footnote is continued orf the next page)

(c) The standards for assessing the adequacy of -

proof needed to make out’ a case of criminal speech

are necessarily strict if the guarantees of the provisions

of the Bill of Rights. are to be preserved. In the context

‘of a penal statute which purports to punish the dis- |

_ semination of obscene writings and other media-of com-

munication, the Constitution would appear to require —-

that the essential elements of obscenity as defined by

__ this Court, and the unlawful knowledge and purpose of ~ |

a accused, be established beyond a reasonable doubt.

If the State contends that it has a right to prevent

‘the dissemination of a writing or other medium. of com-

munication, then, at the very least, the proof of specific

‘unlawful knowledge and intent should be “solid”.. The:

_. evidence should be “substantial and beyond reasonable _

doubt”, “clear, convincing and unequivocal”, and “free *

- from doubt”. The factfinder should: not be permitted to’

_ infer ultimate facts of scienter and mens rea from evi-

dence based on suspicion, conjecture and, surmisal, or

on the basis of piling infererice upon inference without

any rational connection between ‘the. fact proved and

- the fact presumed. Proof of guilty knowledge and un-

lawful intent cannot be established by. reliance on some

_ isolated and equivocal utterance to establish the specific

guilty knowledge and criminal: intent which the law

, condemns.

On issues of acienter Vind mens réa, particularly where

these issues are related to such complex questions as the

“extent of community toleration, appeal to prurient in-

EE I eee Smet tones (ot Docks sed other

, 362 U.S. 199; Schware v. Bogyd o ' Bar Examiners,

EUS 232: Garner 4 Lovisiona, 308 US "157; Taylor “wv.

US US. 154; Shuttlesworth v. . City of. iene

niedia of commitnication, the record require scrupulous

‘scrutiny. Since this Court has held that-one of the prin-

cipal, dividing lines between constitutionality and uncon-—

stitutionality in the application: of obscenity statutes is . , -

proof of scienter and mens rea, the freedoms to exercise

speech and press will to a large degree depend upon

the* quality” of thé evidence deémed ‘sufficient-to sup-

port findings of guilty knowledge. and unlawful intent..

If freedom of expression is to be safeguarded, ‘proof af,

guilty knowledge .and unlawful intent in any obscenity

prosecution must, ‘it is submitted, be clear, convinging,

unequivocal and beyond doubt.

The aforesaid principles are distilled from the ‘des

cisions of this Court. In New York Times Co., et al.

v. Sullivan, 376. U.S. 254,,there was: ‘admittedly proof .

of falsity in the statements, made in the advertisement

published in the newspaper, and‘there was proof of fail~ _

ure on the part of the. employees of the newspaper to”

check. the accuracy of the statement. Nevertheless, this _

Court held, “against the background of a profound na-

‘tional commitment to the,principle that debate on- public

issues should be uninhibited, robust and wide-operi”,

that the record did not support a finding of actual

malice (376 U.S. at 270). Applying the. protective

.standards of the First and Fourteenth Amendments, the

Court stated “that the proof presented to show actual

‘ malice lacks ‘the convincing clarity which the constitu-.

tional standard demands, and hence that it would not _

constitutionally sustqgin the - judgment for’ respondent °

under the proper rule of law” (376 U.S. at 285-286). _

In Manual: Enterprises, Inc. v. Day, 370 U.S. 478,

"one of the issues presented was: whether the- petitioners

in the said case knew that some of. the third-party ad-

Do

a

a

. photographs, although the advertisements ‘of such ma-

terial in petitioners’ magazines were admittedly not ob-

=. On the issue of scienter, Justice Harlan; -an- ~

ouncing the judgment of’ the Court; held first, that the

applicable federal statute must be construed as requir-

- ing proof that the publisher of the magazines knew -

that some of his advertisers were offering to sell ob-

‘stene material. The scienter requirement was held to bé

constitutionally required under the decision in Smith v.

California, 361 U.S. 147, and for reasons similar to.

those advanced in Smith. Secondly, turnigg to the record

_ in. the case, Justice. Harlan rejected the “remote” and

“general” testimony preserited by the postal officials.

It was held that an obscenity statute which requires

proof of .scienter “is. riot satisfied, as the Government

suggests it might be, merely by. showing that a deferid-

ant did not make a ‘good faith effort’ to ascertain the

character of his advertiser’s materials” (370 U. S. at

. 493). Justice Harlan added:

* “At best the :;Government’s proof showed no

more than that petitioners were chargeable witli

knowledge that these advertisers were offering

_ photographs, of the Same character, and with the

same purposes, as those reflected in their own

magazines. This is not enough to satisfy the Gov-

ernment’s burden of proof on this score.” (370,

USS. at 494-495).

In Hartzel v. United s tates, 322 U.S. 680, the: ac-

_._ cused was charged with violation of the ‘Espionage Act

by’ wilful attempt to cause insubordination in the

Armed Forces and wilful obstruction of, the recruiting

and enlistment service of the United States. The ‘sproot

/

_vertisers were in the possession, of alleged “hard-core”

8

a

.. reasonable doubt, and. reversed the ju

viction. ““Thoughtlessness, carelessness ; and even reck-

—L7—

showed, among other’ ‘things, ‘that the defendant dis-

tributed secretly and anonymously to Army officers

and registrants under the Draft ‘Act articles against

the war, our allies, Jews and the President of ,.the

United States. There was proof ‘that defendant intended |

to create sentiment against. the war among the White

races‘and to unite them against the Yellow races (322

.S. at 682-686). Nevertheless, this Court held that the

kequisite specific intent had not been ppoved beyond a

el of Scon-—

léssness are not substitutes for the more specific state

of mind which the statute makes an essential ingredient .

. of the crime” (322 U.S. at 689). See also, er v.

Umited States, 325 U.S. 478, 480-495.

In Hérndon v. Lowry, 301 U.S. 242, the defendant

- was charged with an attempt to induce others to join:

in cofnbined ‘resistance to the lawful. authority of the

State ‘with intent to deny, to defeat, and to overthrow.

such authority by open force, violent means and ‘unlaw- .

~ ful acts. The evidence showed that the defendant was a -

paid organizer for the Communist Party, whose duties

included creating | an organization “of: the Party in Atlani-

. ta, Georgia. When arrested, @efendant ‘was found to

have in his possession receipt books .and membership

a books, considerable Party literature. dealing with the.

revolutionary theories of Marxism and self-determina-

tion for the Negro people in the South (301 U. S. at

250). On the issue of the accused's “intent to incite in-

surrection” (301 U.S. at bid the’ Court Stated as fol-

secapd (eB ye

. We are of opinion that the requisite proof

is incking. From what has been said above with: re-

=

r

spect to the evidence offered at the trial, it is ; ap-

parent that the documents found upon thé. appel-

. lant’s person were certainly, as to’ some of the

aims’ stated therein, irinotent and consistent with

peaceful action for a change in the laws or the

Constittition. The proof wholly fails to showéthat

the appellant had read these documents; that he

. had distributed any of them; that he believed and

advocated afiy or all of the principles and-aims set

forth in them, or that those “he had procured to

become. members of the party knew or apyrenet

of any of these documents.

“Thus, the crucial question is not the formal in-

terpretation of the statute by the Supreme Court

_ of Georgia but the application given it... .” -

U.S. at 259-260). ; - |

In Baumgartner v. "United States, 322 U. S. 665, an

action was brought by the Government to set aside a

naturalization decree and cancel the certificate of nat-

_uralization. The District Court entered a decree for the

Government and the Court of Appeals affirmed, both

courts finding on the record sufficient support for find-

ings of falsity and fraud i in ‘the procurement of the cer-

tificate. Despite the concurrent: findings of the two’

lower courts, this Court*held that the measure of proof

requisite to denaturalize a citizen had not been met.-.

‘. Tt. was held that the proof was not “clear, unequivocal _

and convincing”, ’, as required in cases which lie “close to

opinion regarding the whole nature of our’ Government

and the duties and immunities of citizenship” (322 U.S.

- at 672). The Court held “that citizenship once bestowed

should not be in jeopardy nor in fear of exercising its

American freedom through a too easy finding that

&

CO DALY A OGIO LO DEO LO HS IE Ne mee Salen

we ce tah ab hee oe a 8

eae

citizenship was disloyally acquired. . . . The evidence

in the record before us is not sufficiently compelling to .

require that we penalize a naturalized citizen for. the ex- .

‘pression of silly or even sinister-sounding views which

native-born citizens utter with impunity” (322 U.S: at |

676-677). See also, Schneiderman. y, United States, 320

U.S. 118, 125; Gonzales 2. Landon, 350 U.S. -920; 7

Noto v, United States, 367 U.S. 290, 299; Edwards v.

: South Carolina, 372 U.S. 229; Wood v. Georgia, 370

_- U.S.’ 375. Cf., Umted Mine Workers oF America v.

_ Gibbs, 383 U.S: 715, 737.

It follows from the aforesaid Aeshitet and other re-

lated rulings by this Court that where issues are pre-

_sented “involving factual matters entangled in a-con-

stitutional claim” (Manual Enterprises, Inc. v. Day,

370 U.S. 478, 488) that this Court will always .review

the evidence in the record, to determine whether or not_

_ the judgment involved is supported by the clear, con-

vincing and unequivocal proof demanded by. the Con-

stitution. Unless proof of scienter and mens rea in an

obscenity prosecution is convincingly clear and without

doubt, a judgment based thereon must be annulled if

the safeguards for the Protections of sreomome of speech

and press are to be maintained.

(d) Measured by the ‘aforesaid requisite constitu-

tional standards, the evidence in the record herein is

clearly inadequate to sustain the judgment of conviction.

It is uncontradicted that the petitioner was merely

a clerk who alternated between the newsstand where

the arrest was made and the book store down the stairs

‘in the subway ‘itself .(R. 12)..As a matter of fact, peti-

tioner had only been ‘at the newsstand for about one

hour on twa earlier occasions besides the one on which

<n 7

he was arrested. His principal duty was wo¥king down-

stairs in the book store (R. 14-15). Petitioner had.

-never been arrested nor convicted of any offense before —

-the arrest and conviction herein (R, 16).

The ovcel is insufficient to show: either knowledge

of the contents of the writings by the petitioner or any —

reason for the petitioner to believe that the ‘material:

was obscene or otherwise unlawful. The price of the

two books was nominal, one: costing ‘00¢ and the other

65¢. Petitioner testified. that he had never seen either

of the two books involved hérein before the time when’

- the police officer ‘made his purchase (R. 16).-

Neither ‘the inquiry of the police officer nor the al-

leged reply of petitioner (R. 12 ) were related to ob-

scenity. The officer took it upon himself to voice a per-.

sonal dislike for material which he believed from a'view _.*_

- ser the titles and‘covers weré in poor taste’ ste’ and. vulgar, to».

“garbage”. That the petitioner so allegedly con- - -

rime the police of ficer’ s remark is evidenced by the —

purported comparison reference ‘to . “girlie” ‘magazines,

“publications which had been held constitutionally. pro-

tected by the highest court of the State in ‘a number of

decisions. People v. Richmond County News, 9 N.Y. 2d

578; 216 N.Y.S. 2d 369, 175 N.E. 2d 681 (1961);

Larkin v. G. I. Distributors, 14 N.Y, 2d 399,°252

NLS. 2d 71, 200 N.E. 2d 760 (1964). =

Thus, the alleged ‘conversation offered by the prosecu-

tion prpved: only that the petitioner clerk was innocent

of ‘any guilty knowledge or unlawful intent. :. Moreover,

NA een ae eae re tn aeat reaper one

. .

Q

My

. ‘ .

»

. . ° . F

.

’ ée ‘

. ” e

iad nahin a Le at ae ae eee ee eke nee i cat eee S ¥ oe oa

aa : =

‘ : ° . .

’ ° ’ .

eelanin

petitioner took the stand and testified that ‘he did not

recall having such conversation with the officer or mak-

_ ing any reference to the. magazines - -which were on the

coufiter (R..16). The general distrust of testimony pur-- ai

porting to foist upon ari accused some extrajudicial oral —

Statement, has been noted by Wigmore. Evidence (3rd.

_ Ed. 1940) Yol. 4, §1056.

_ The entire record, it is submitted is too insubstantial

. and lacking in any probative value to support the judg-

ment of conviction herein. The State manifestly failed

to meet the high burden of proof imposed upon the

State under the Constitution when First Amendment

rights are involved. *, |

The- judgment of conviction herein, we upon inade-

quate evidence in support of the elements: of scienter |

~ and mens rea, deprives petitioner of his” liberty without

due process of Jaw because it deprives petitioner arbi-

trarily of ‘a fair trial, undermines the presumption of .

innocence, relieves the prosecution of the obligation to

produce evidence to sustain the burden of proving guilt

beyond a reasonable doubt, and generally operates to.

‘punish innocent and guiltless. beliavior, all in violation

..of the procedural due process guarantees of >» F our-

teenth Amendment. Moreover, the judgment ‘of con-

viction, resting on an inadequate record to prove scienter

and mens rea, violates’ the spirit and letter of the de-

‘cision of this Court in Smith v. California, 361 U.S.

147, The vaguertess of. the statute, as construed and a

applied by the state court to the petitioner herein, re-.

sults in a pervasive censorial restriction on freedom of.

5 F ‘sill

expression, compelling the same self-censorship by book-.

sellers which this Court noted in- Smith v. California.

- The broad protections of freedoms of speech and press

* would, it is submitted, be. seriously endangered if a

judgment of conviction J an obscenity: prosecution were

to be sustained on flie basis of the meager and flimsy

evidence presented in the record herein in support of —

charges of guilty knowledge and unlawful intent:

< big tee. —Conclusion.

The Jatin should be reversed.

_ Respectfully submitted,

| STANLEY FLEISHMAN,

' Counsel for Petitioner.

_. Osmond K. FRAENKEL, ae

@ SAM ROSENWEIN, |

Of Counsel.

.

‘ 4

a aw en

.

~— Ce eae Se ene Toe

| _ APPENDIX A,

Constitutional Provisions and Statutes Involved.

1. The. pertinent provisions of the First Amend-_

ment to ‘the United States Constitution are:

“Congress shall make fo law. . oc the

freedom of speech, or of the press;.. .”

2 “The pertinent provisions of the’ Femi

Amendment to the United States Constitution are:

“No. State shall . . . deprive any person of life,

liberty, or property, without due tem of law;

9

.

re The pertinent provisions of New York Penal

| Law, Section 1141, are:

“gl 141. Obscene Prints and Articles

1. A person who sells, lends, gives away, dis-

' . tributes, shows. or transmutes, ‘os ffers to sell,

lend, give away, distribute, show or transmute, or

has ‘in his possession with intent to sell, lend, dis-

tribute, give away, show or transmute, .. ."or who

otherwise offers for loan; ‘gift, sale or distribu-

tion, any obscene, lewd, lascivious, filthy, indecent,

. Sadistic, masochistic or disgusting book . . . draw-

ing, photograph spine picture film, figure, im- ~

age,... cy 3

“Is guilty. of a misdemeanor. . . .” .

(As amended L.: 1950, ¢.623, §§1-3; L. 1950, ¢:

624; L.1954, c.703; L.1955, c.837; 1.1956, cc.423, -

661, 662, 681; 1.1957, c.690; °L.1958, cc.735,

736, eff. July 1, 1958, L.1958, c.737, $81, 2 eff.

July 1, 1958 . . . a.

. .

, . . ‘ ‘

7 ° :

a

Sa A i ee i i A Rt ti eS eh ei dae a te cat tend v "

: . : .

.